ARCHIVED - Telecom Commission Letter - 8665-C12-200601626

Letter

Ottawa, 14 September 2006

File #: 8665-C12-200601626

By Electronic Mail

Mr. Wally Hill
Vice President, Public Affairs and Communications
Canadian Marketing Association (CMA)
Don Mills, On  

Dear Mr. Hill:

RE:   Telecom Public Notice CRTC 2006-4: Proceedings to Establish a National Do Not Call List Framework and to Review the Telemarketing Rules - Application for Costs.

In your letter dated 18 August 2006, you requested an extension of time so that the Canadian Marketing Association (CMA) could apply for costs in the Proceeding to establish a national do not call list framework and to review the telemarketing rules , Telecom Public Notice 2006-4, 20 February 2006, proceeding (the 2006-4 proceeding), as well as the various CISC sub-committees which it has been party to.   The CMA wished to apply for costs only after the sub-committees have completed their work.

The CMA should have filed for costs 30 days after the completion of the record of the main proceeding instead of waiting for all of the sub-committee work to be completed.   This is a common practice e and has been followed by all of the other interveners to the 2006-4 proceeding.

The Commission, as provided for in section 44(2) of the CRTC Telecommunications Rules of Procedure (the Rules), has the discretion to extend the 30 day deadline.   If the CMA decides to apply for costs in relation to the 2006-4 proceeding, it should do so within 30 days of the date of this letter.   If the CMA wishes to apply for the costs related to the sub-committees it can apply for those costs at a later date.

As you may be aware, the Commission has the discretion to award costs to any party that has participated in a proceeding.   However it has been the Commission's general practice to only award costs to certain types of interveners, usually individual consumers or public interest groups.   With few exceptions, the Commission has repeatedly determined that costs awards are for responsible interveners who would not otherwise be able to participate in a proceeding and has viewed industry associations, commercial enterprises, and municipalities as ineligible for costs awards since they have sufficient incentives to participate in a proceeding.

Costs Order 87-3 found the City of Yellowknife ineligible for costs in the Northwest Tel Inc, General Increase in Rates - Telecom Decision CRTC 87-3 proceeding, since participation of a municipality in regulatory matters affecting their citizens is a recognized function of a municipality.   This decision has been followed many times since and sets down the principle that municipalities, for the most part, are ineligible for costs awards.   An exception to this rule can be found in Costs Order 93-10.   The Commission awarded costs to the City of Calgary in the In re: AGT Limited (AGT) - Issues Related to Income Taxes , Telecom Decision CRTC 93-9 proceeding, since the proceeding involved special and unique circumstances, the issues were exceptionally technical and complex, and the City of Calgary was the sole intervener.

Generally the Commission has viewed industry associations and commercial entities as ineligible for costs awards as well.   Costs Order 83-4 denied Independent Telephone Companies of British Columbia (ITC) its application for costs, despite the fact that it had participated responsibly and contributed to a better understanding of the issues in the Re: British Columbia Telephone Company, General Increase in Rates , Telecom Decision CRTC 83-8 proceeding.   The Commission determined that groups like ITC have sufficient incentives to participate in general rate proceedings.   In Costs Order 98-18, Canadian Satellite Communications Inc (Cancom) was denied costs in the Re: Telesat Canada Application to Review and Vary Telecom Decision 97-17 , Telecom Decision CRTC 98-16 proceeding, by virtue of being a commercial entity.   Its membership in the telecommunications industry was sufficient incentive to participate in the proceeding.   The Commission stated that costs awards are available to ensure the participation of an intervener who would not otherwise be able to participate.   Queen's University (QU) applied for costs in Re Local Pay Telephone Competition, Telecom Public Notice CRTC 97-26 proceeding, claiming that it did not have a budget allocated for CRTC proceedings and that the costs would have to be found from other budget items.   The Commission noted that QU participated extensively throughout the proceeding, retained experienced regulatory counsel to represent its interests and did not file for costs until well after the record of the proceeding had closed.   The Commission also noted in passing that QU though not a commercial entity had a commercial interest in the proceeding.   The Commission determined in Costs Order 98-14 that QU's application for costs was neither necessary nor appropriate under these circumstances.   In C osts Order 99-14, the Commission denied the Federation of Alberta Gas Co-Operatives a costs award for its participation in the Service to High Cost serving areas - Telecom Public Notice CRTC   97-42 proceeding.   The Federation of Alberta Gas Co-Operatives claimed that it did not have the funds available to participate and that any expenses incurred would have to be found from its members.   The Commission decided that the Federation of Alberta Gas Co-Operatives was an industry organisation representing business interests and had sufficient incentives to participate in the proceeding.  

Costs Order 91-3 denied costs to Novix in the Re: Maritime Telegraph and Telephone Company Limited-Revenue Requirement for 1990 and 1991 Telecom Decision CRTC 90-30 proceeding.   The Commission decided that it was not appropriate to award costs to a commercial enterprise engaged in the telecommunication industry.   Novix had sufficient incentive to participate in the proceeding.   Novix applied to review and vary Costs Order 91-3, on the basis that the Commission had exceeded its jurisdiction by relying on criteria that was not enumerated in section 44 of the Rules, that the Commission had not considered the fact that Novix lacked the funds to participate in an appropriate manner and that the Commission changed its criteria for costs awards in mid stream.   Telecom Letter Decision 91-6 upheld Costs Order 91-3 and reiterated that commercial entities by their very nature have sufficient incentives to participate in a proceeding.

Under exceptional circumstances, the Commission has awarded costs to parties who are not individual consumers or public interest groups.   For example, in Costs Orders 96-31 and 96-32, both the Canadian Library Association and the Association of Universities and Colleges of Canada were awarded costs relating to the Tariffs for Education and Health Service Entities Telecom Decision CRTC   96-9 proceeding.   The Commission decided that these two not for profit organisations that represented not for profit organisations needed costs awards to fully participate in the proceeding.

If the CMA intends to apply for costs related to the 2006-4 proceeding, it should do so within thirty days of this letter.   The CMA's costs application should outline why the Commission ought to depart from its general practice of not awarding costs to industry associations, commercial entities or other interveners who have sufficient incentives to participate in a Commission proceeding.

Thank you.

Yours sincerely,

Original signed by  

Gerald Lylyk
Director, Consumer Affairs
Telecommunications